The Bermuda government’s decision to repeal same-sex marriage rights has been overturned by the island’s Supreme Court.
The same court ruled in May 2017 that the territory was compelled to permit same-sex marriages as a matter of Bermudian law. The government at the time did not appeal the decision, but following a general election, the new administration responded by introducing a Domestic Partnerships Act, which revoked the rights granted by the court and created the alternative of civil partnerships for gay and lesbian couples.
Campaigners argued that was not sufficient to meet the requirement of equal rights for all and mounted a new legal challenge. Last week, Bermuda’s Chief Justice Ian Kawaley ruled that the new law was unconstitutional, effectively reinstating same-sex marriage in the territory.
That decision will not take immediate effect, however, because the chief justice granted a six-week stay to allow the territory’s government to decide whether to appeal.
Chief Justice Kawaley ruled that sections of the new act were invalid because they favored one religious interpretation of marriage over another.
Citing a point put forward by Mark Pettingill, the lawyer for the plaintiffs, he drew parallels with past racial discrimination in Bermuda.
He wrote, “Mr. Pettingill evocatively submitted that same-sex couples being permitted to participate in legally recognised domestic partnerships but not marriages was akin to people of colour in Bermuda being permitted to enter the theatre but required to sit in special seats. It was not an answer for the Crown to say that being allowed into the theatre meant that no discrimination was taking place.”
Chief Justice Kawaley, in what is likely to be one of his last judgments in Bermuda before he takes up a role on the bench in the Cayman Islands, said the act contravened rights of freedom of conscience and freedom of creed guaranteed by the Bermuda constitution.
He said allowing same-sex marriage did not interfere with anyone else’s rights, but the prohibition to conduct same-sex marriage breached the freedom of those churches that believe in it.
He wrote, “Persons who passionately believe that same-sex marriages should not take place for religious or cultural reasons are entitled to have those beliefs respected and protected by law. But, in return for the law protecting their own beliefs, they cannot require the law to deprive persons who believe in same-sex marriage of respect and legal protection for their opposing beliefs.”
He said Bermuda had a secular constitution and its Christian heritage was no justification for restricting legal rights of other groups.
“The present decision vindicates the principle that Parliament cannot impose the religious preferences of any one group on the society as a whole through legislation of general application.”
The decision was celebrated by campaigners in the Cayman Islands who believe it strengthens the case for same-sex marriage in the territory. Leonardo Raznovich, a lawyer and former law school professor in the territory, said Cayman’s constitution contains stronger protections against discrimination on the grounds of sex and sexual orientation than equivalent legislation in Bermuda.
He added that the Bermuda decision, though not binding on Cayman’s courts, would be a persuasive authority for the judiciary here to consider if and when a similar case is brought in this territory.
He said, “At the very least, the Bermuda decision destroys the argument that the Cayman Islands is in a region culturally different [to the U.K. mainland] and therefore those protections [of rights for same-sex couples] should not apply.”
Another significant aspect of the decision, said Mr. Raznovich, is that it affirms that rights, once enshrined in law, cannot be legislated away: “The implication of the judgment is that once a fundamental right becomes guaranteed by the court under the bill of rights of the constitution of the territory, the legislature can’t go back and remove those rights; this may be possible under the Westminster system of parliamentary democracy in which Parliament is supreme, but it is not legally possible under a constitutional democracy such as the one in Bermuda or the Cayman Islands, in which the constitution is supreme.”